Jones v. Department of Health & Human Services

United States Court of Appeals

for the Federal Circuit

______________________

JOHN PAUL JONES, III,

Petitioner

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES,

Respondent

______________________

2016-1792

______________________

Petition for review of the Merit Systems Protection

Board in No. DE-4324-15-0233-I-1.

______________________

Decided: August 22, 2016

______________________

JOHN PAUL JONES, III, Albuquerque, NM, pro se.

AARON E. WOODWARD, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, for respondent. Also represented by

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON

KIDD-MILLER; ROBERT L. THOMAS, Office of the General

Counsel, United States Department of Health & Human

Services, Atlanta, GA.

______________________

Before NEWMAN, MOORE, and WALLACH, Circuit Judges.

2 JONES v. HHS

WALLACH, Circuit Judge.

On various dates in 2015, veteran John Paul Jones,

III, filed sixteen appeals with the Merit Systems Protec-

tion Board (“MSPB”), alleging that the U.S. Department

of Health and Human Services (“HHS” or “Government”)

violated the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), Pub. L.

No. 103-353, 108 Stat. 3149 (codified as amended at 38

U.S.C. §§ 4301–4333 (2012)), 1 when it did not select him

for various job vacancies. An administrative judge (“AJ”)

consolidated the appeals and ultimately denied

Mr. Jones’s request for relief in an Initial Decision. See

Jones v. Dep’t of Health & Human Servs., No. DE-4324-

15-0233-I-1 (M.S.P.B. Mar. 25, 2016) (Resp’t’s App’x 25–

38). The AJ’s Initial Decision became the Final Decision

of the MSPB when Mr. Jones did not timely file a petition

for review of that decision before the MSPB. See 5 C.F.R.

§ 1201.114(e) (2016).

Mr. Jones appeals, contending the AJ’s decision con-

tains various legal and factual errors. The Government

alleges that we lack jurisdiction to hear Mr. Jones’s

appeal or, in the alternative, that the AJ’s decision was

correct and should be affirmed. We conclude that we have

jurisdiction over Mr. Jones’s appeal and that the AJ

properly denied his claims. We therefore affirm.

DISCUSSION

I. Subject Matter Jurisdiction

As an initial matter, we must address whether this

court possesses subject matter jurisdiction over

Mr. Jones’s appeal. See Ruhrgas AG v. Marathon Oil Co.,

1 Congress passed USERRA to, inter alia, “prohibit

discrimination against persons because of their service in

the uniformed services.” 38 U.S.C. § 4301(a)(3).

JONES v. HHS 3

526 U.S. 574, 583 (1999) (“[A] federal court [must] satisfy

itself of its jurisdiction over the subject matter before it

considers the merits of a case.” (citation omitted)). The

AJ stated that his Initial Decision would become final on

April 29, 2016, unless Mr. Jones sought further review

before the MSPB by that date. Resp’t’s App’x 38.

Mr. Jones did not seek further review from the MSPB, but

rather filed his petition for review with this court on April

4, 2016, twenty-five days before the AJ’s Initial Decision

became final. See Jones v. Dep’t of Health & Human

Servs., No. 2016-1792, Docket No. 1 at 2 (Fed. Cir. Apr. 5,

2016).

The Government asserts that we “lack[] jurisdiction

[to hear Mr. Jones’s appeal] because[,] at the time

Mr. Jones filed his appeal, the [AJ’s] decision was not yet

final,” such that there was no final MSPB decision from

which Mr. Jones could appeal. Resp’t’s Br. 3. As a result,

the Government argues that “Mr. Jones would need to

refile his appeal in order to properly invoke this [c]ourt’s

review power.” Id. at 4 (citation omitted). We disagree.

We possess jurisdiction over an appeal from a “final

decision” of the MSPB. 28 U.S.C. § 1295(a)(9) (2012). To

obtain review in this court, “a petition to review a . . .

final decision of the [MSPB] shall be filed . . . within

[sixty] days after the [MSPB] issues notice” of its final

decision. 5 U.S.C. § 7703(b)(1)(A) (2012) (emphases

added). We have held that, to invoke the court’s jurisdic-

tion to appeal the MSPB’s final decision, a petitioner must

file a petition for review within the time frame provided

in 5 U.S.C. § 7703(b)(1)(A). See Oja v. Dep’t of the Army,

405 F.3d 1349, 1357 (Fed. Cir. 2005) (The time for filing

an appeal pursuant to 5 U.S.C. § 7703(b)(1) “is ‘statutory,

mandatory, [and] jurisdictional.’” (quoting Monzo v. Dep’t

4 JONES v. HHS

of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984))); 2 see

also Fed. R. App. P. 15(a)(1) (“Review of an agency order

is commenced by filing, within the time prescribed by law,

a petition for review with the clerk of a court of appeals

authorized to review the agency order.” (emphasis add-

ed)). 3

Nevertheless, we also have held that, when a peti-

tioner files a petition for review with this court before an

AJ’s initial decision becomes final, the petitioner’s appeal

ripens once that initial decision becomes the final decision

of the MSPB. See Schmitt v. Merit Sys. Prot. Bd., 315

2 It may be time to ask whether we should recon-

sider Oja and Monzo in light of recent Supreme Court

precedent finding some statutory time limits nonjurisdic-

tional. See, e.g., United States v. Kwai Fun Wong, 135 S.

Ct. 1625, 1630–33 (2015) (“Congress’s separation of a

filing deadline from a jurisdictional grant often indicates

that the deadline is not jurisdictional.”). As previously

stated, we possess jurisdiction to review a final decision of

the MSPB under 28 U.S.C. § 1295(a)(9); however, the

filing deadline is codified under 5 U.S.C. § 7703(b)(1).

Notwithstanding the Supreme Court’s decision in Kwai

Fun Wong, we need not answer that question to resolve

the instant appeal and, in any event, we could not do so as

a panel because Oja and Monzo may be overruled only by

this court en banc. See Deckers Corp. v. United States,

752 F.3d 949, 966 (Fed. Cir. 2014) (explaining that only

an en banc court, intervening Supreme Court precedent,

or Congressional change of an underlying statute may

overrule prior precedential panel decisions).

3 Rules 1–2 and 15–21 govern appeals from the

MSPB. See Fed. R. App. P. 20 (“All provisions of these

rules, except Rules 3–14 and 22–23, apply to the review or

enforcement of an agency order.”); see also Fed. R. App. P.

15(a)(4).

JONES v. HHS 5

F. App’x 278, 280 (Fed. Cir. 2009) (unpublished)

(“Mr. Schmitt prematurely appealed to this court follow-

ing the AJ’s initial decision. After the [MSPB] denied

Mr. Schmitt’s petition for review, the AJ’s [initial] deci-

sion became final and Mr. Schmitt’s prematurely filed

appeal ripened.” (citation omitted)); see also Galloway v.

Dep’t of Agric., No. 2009-3279, 2010 WL 2026055, at *1

(Fed. Cir. 2010) (unpublished) (similar). Contra Pinder v.

U.S. Postal Serv., 267 F. App’x 938, 2008 WL 565449, at

*1 (Fed. Cir. 2008) (unpublished) (“Because Pinder’s

petition for review in this court was filed before the AJ’s

[initial] decision became final, the petition is premature.

Thus, we dismiss.”).

Our conclusion in Schmitt is consistent with our prec-

edent in analogous circumstances. For example, in In re

Graves, we held that an appellant’s prematurely-filed

notice of appeal “ripened into an effective [timely] appeal”

once the underlying original administrative decision

became final. 69 F.3d 1147, 1151 (Fed. Cir. 1995); see id.

(“Our jurisdiction to hear the appeal was, in effect, sus-

pended until” the decision of the Board of Patent Appeals

and Interferences became final. (footnote omitted)); accord

Craker v. Drug Enf’t Admin., 714 F.3d 17, 25 (1st Cir.

2013) (favorably citing Graves in finding that it retained

jurisdiction over a prematurely-filed appeal because, inter

alia, it “suspended and then resumed consideration of a

petition for review” once the decision of the Drug En-

forcement Administration became final). But cf. W. Union

Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir. 1985) (“[A]

challenge to now-final agency action that was filed before

it became final must be dismissed” as “jurisdictional[ly]

bar[red]” (citations omitted)); 4 accord Council Tree

4 Similar to 5 U.S.C. § 7703(b)(1)(A), the provision

at issue in Western Union required a petition for review to

be filed “within [sixty] days after” entry of a final agency

6 JONES v. HHS

Commc’ns, Inc. v. FCC, 503 F.3d 284, 291 (3d Cir. 2007)

(favorably citing Western Union in dismissing a prema-

turely-filed petition appealing a non-final order). The

decision in Graves to treat a prematurely-filed appeal of a

non-final order as effectively stayed until the underlying

agency order becomes final finds support in the Supreme

Court’s observation that “a stay is as much a refusal to

exercise federal jurisdiction as a dismissal,” Moses H.

Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 28

(1983), a position that the First Circuit has endorsed, see

Craker, 714 F.3d at 25 (favorably citing Moses for the

same proposition).

The D.C. Circuit’s decision in Western Union is rele-

vant, but it neither binds us nor persuades us to dismiss

Mr. Jones’s appeal. “[D]ecisions of the regional circuits

[relevant to] issues within our exclusive jurisdiction,”

such as our jurisdiction over appeals from the MSPB, “are

not binding on this court,” Superior Fireplace Co. v.

Majestic Prods. Co., 270 F.3d 1358, 1372 (Fed. Cir. 2001)

(citation omitted), but we may nevertheless consider those

decisions for guidance, see Avocent Huntsville Corp. v.

Aten Int’l Co., 552 F.3d 1324, 1337 (Fed. Cir. 2008). In its

decision, the D.C. Circuit did not address the Supreme

Court’s decision in Moses. See generally W. Union, 773

order. 773 F.2d at 376 (discussing 28 U.S.C. § 2344

(1982)). In reaching its conclusion, the D.C. Circuit

rejected the argument that “within [sixty] days” in the

statute “establish[ed] sixty days after entry [of the final

order] as the filing deadline”; instead, it found that “with-

in” “establish[ed] the sixty-day period after entry as the

filing ‘window.’” Id. It reasoned that, “[i]f the intent were

to establish a filing deadline rather than a filing window,

[the statute] would more naturally have been phrased ‘no

later than [sixty] days after . . . entry[,]’ rather than

‘within [sixty] days after . . . entry.’” Id.

JONES v. HHS 7

F.2d 375. Moreover, Western Union does not account for

the recent trend in Supreme Court opinions finding

statutory time limits nonjurisdictional, see, e.g., Kwai Fun

Wong, 135 S. Ct. at 1630–33, and the D.C. Circuit does

not appear to have revisited the principle articulated in

Western Union despite that recent Supreme Court prece-

dent, see, e.g., Blue Ridge Envtl. Def. League v. Nuclear

Regulatory Comm’n, 668 F.3d 747, 756 (D.C. Cir. 2012)

(reaffirming the principle articulated in Western Union

and its progeny). Thus, we find the analysis in Western

Union incomplete.

The facts of Mr. Jones’s appeal are similar to those in

Schmitt, such that we find it appropriate to assert juris-

diction over his appeal. Like the petitioner in Schmitt,

Mr. Jones filed his petition for review with this court

before the AJ’s Initial Decision became the Final Decision

of the MSPB—i.e., he appealed too early. And like the

decision under review in Schmitt, the AJ’s Initial Decision

became the Final Decision under review on appeal. This

is not a case where some claims remained pending before

the MSPB, see Baiamonte v. Potter, 345 F. App’x 561,

562–63 (Fed. Cir. 2009) (unpublished) (dismissing prema-

turely-filed appeal from the United States Postal Service

Board of Contract Appeals when some claims remained

pending below), or where Mr. Jones sought review of the

MSPB’s final decision after the sixty-day time limit in

5 U.S.C. § 7703(b)(1)(A), see Fed. R. App. P. 26(b)(2)

(explaining that the court “may not extend the time to file

. . . a notice of appeal from . . . an order of an administra-

tive . . . board . . . unless specifically authorized by law”).

Our conclusion also finds support in the equitable princi-

ple of fair play inherent to the judiciary. Cf. McDonald v.

Mabee, 243 U.S. 90, 91 (1917) (“[G]reat caution should be

used not to let fiction deny the fair play that can be se-

cured only by a pretty close adhesion to fact.” (Holmes, J.)

(citation omitted)). Therefore, we assert jurisdiction over

the appeal. See Schmitt, 315 F. App’x at 280.

8 JONES v. HHS

II. Standard of Review

We next turn to the merits of Mr. Jones’s appeal. As

stated above, Mr. Jones alleges that the AJ committed

various legal and factual errors. We affirm the MSPB’s

decision unless, inter alia, it is “not in accordance with

law,” 5 U.S.C. § 7703(c)(1), or “unsupported by substantial

evidence,” id. § 7703(c)(3). We review the MSPB’s legal

determinations de novo. Welshans v. U.S. Postal Serv.,

550 F.3d 1100, 1102 (Fed. Cir. 2008). “Substantial evi-

dence is more than a mere scintilla” of evidence, Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), but “less

than the weight of the evidence,” Consolo v. Fed. Mar.

Comm’n, 383 U.S. 607, 620 (1966). As the petitioner, Mr.

Jones “bears the burden of establishing error in the

[MSPB’s] decision.” Harris v. Dep’t of Veterans Affairs,

142 F.3d 1463, 1467 (Fed. Cir. 1998) (citation omitted).

III. The AJ Properly Denied Mr. Jones’s USERRA Claims

A. Legal Framework

As stated above, “[t]he USERRA prohibits discrimina-

tion in employment on the basis of military service.”

Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1012 (Fed.

Cir. 2001). “[A]n employee making a USERRA claim of

discrimination . . . bear[s] the initial burden of show-

ing . . . that the employee’s military service was a sub-

stantial or motivating factor in the adverse employment

action.” Id. at 1013 (internal quotation marks and cita-

tion omitted). “[M]ilitary service is a [substantial or]

motivating factor for an adverse employment action if the

employer relied on, took into account, considered, or

conditioned its decision on the employee’s military-related

absence or obligation.” McMillan v. Dep’t of Justice, 812

F.3d 1364, 1372 (Fed. Cir. 2016) (internal quotation

marks and citation omitted).

An employee may prove discriminatory motivation “by

either direct or circumstantial evidence.” Sheehan, 240

JONES v. HHS 9

F.3d at 1014 (citation omitted). Absent direct evidence,

the MSPB may infer discriminatory motivation from,

inter alia,

[(1)] proximity in time between the employee’s

military activity and the adverse employment ac-

tion, [(2)] inconsistencies between the proffered

reason and other actions of the employer, [(3)] an

employer’s expressed hostility towards members

protected by the statute together with knowledge

of the employee’s military activity, and [(4)] dis-

parate treatment of certain employees compared

to other employees with similar work records or

offenses.

Id. (citation omitted). We commonly refer to these four

elements as the “Sheehan factors.” McMillan, 812 F.3d at

1373 (capitalization omitted).

An employee meets the initial evidentiary burden by

demonstrating that “a preponderance of the evidence”

supports the claim. Id. at 1372 (citation omitted). “Pre-

ponderance of the evidence . . . means the greater weight

of evidence, evidence which is more convincing than the

evidence which is offered in opposition to it.” Hale v.

Dep’t of Transp., 772 F.2d 882, 885 (Fed. Cir. 1985).

B. The AJ Properly Concluded that Mr. Jones Failed to

Meet His Initial Evidentiary Burden

The AJ found that neither direct nor circumstantial

evidence supported Mr. Jones’s USERRA claim, such that

Mr. Jones failed to demonstrate by a preponderance of the

evidence that his military service was a motivating factor

in HHS’s decision not to hire him for the subject job

vacancies. Resp’t’s App’x 29–38. The AJ first found that

“there is no direct evidence . . . [Mr. Jones] was not hired

for the positions at issue because of his past military

service,” id. at 29, a conclusion Mr. Jones does not contest

on appeal.

10 JONES v. HHS

Turning to the circumstantial record evidence, the AJ

found that not one of the four Sheehan factors demon-

strated discrimination. See id. at 29–38. As to the first

factor, the AJ observed that forty-five years separated Mr.

Jones’s service and HHS’s non-selection decisions, evinc-

ing a “lack of a nexus between his military service and the

non-selections.” Id. at 30. As to the second factor, the AJ

found that HHS’s proffered reasons for not hiring

Mr. Jones were consistent with its other actions. Id. at

31–37. As to the third factor, the AJ found no hostility

towards uniformed members by HHS, concluding that the

evidence proffered by Mr. Jones was “not circumstantial

evidence supporting a finding that [Mr. Jones’s] military

service was a factor in any of the non-selections at issue.”

Id. at 38. Finally, as to the fourth factor, the AJ found

HHS did not disparately treat veterans and non-veterans,

citing several examples of HHS employees either finding

veteran applicants qualified where they did not find Mr.

Jones qualified, or hiring other veterans. Id. at 30–31 &

n.2.

Mr. Jones alleges that the AJ erred “by omitting key

evidence and testimony from [its] decision.” Pet’r’s Br. 2.

In particular, Mr. Jones identifies nine errors that the AJ

allegedly committed, some of which he tethers to particu-

lar Sheehan factors and others he asserts more generally.

See id. at 2–16. None of Mr. Jones’s arguments are

persuasive.

Starting with his general allegations, Mr. Jones alleg-

es that the AJ took too long to decide his case—“over six

months from the close of the hearing until [the AJ] ren-

dered his decision.” Id. at 2. However, neither the gov-

erning statute nor the relevant regulation requires the AJ

to issue a decision within a particular time period.

5 U.S.C. § 7701(b)(1) (“The . . . [AJ] . . . shall make a

decision after receipt of the written representations of the

parties to the appeal and after opportunity for a hear-

ing.”); 5 C.F.R. § 1201.111(a) (“The judge will prepare an

JONES v. HHS 11

initial decision after the record closes and will serve that

decision on all parties to the appeal, including named

parties, permissive intervenors, and intervenors of

right.”).

Mr. Jones also alleges that the AJ improperly credited

the testimony of various witnesses. Pet’r’s Br. 8–11.

However, witness credibility “determinations are virtually

unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d

430, 436 (Fed. Cir. 1986), and Mr. Jones has not provided

us with a sufficient reason for disturbing them, see Ander-

son v. City of Bessemer City, 470 U.S. 564, 575 (1985)

(“[W]hen a trial judge’s finding is based on his decision to

credit the testimony of one of two or more witnesses, each

of whom has told a coherent and facially plausible story

that is not contradicted by extrinsic evidence, that find-

ing, if not internally inconsistent, can virtually never be

clear error.”).

Mr. Jones argues further that the AJ failed to recog-

nize that HHS employees had “pre-select[ed]” other

candidates for the vacancies at issue, such that HHS did

not provide him with priority consideration for those

positions as required by the Veterans Employment Op-

portunities Act of 1998 (“VEOA”), Pub. L. No. 105-339,

112 Stat. 3182 (codified as amended in scattered sections

of 2, 3, 5, 10, 28, 31, 38, and 49 U.S.C. (2006)). 5 Pet’r’s

Br. 6. However, the decision under review addressed only

Mr. Jones’s USERRA claims, not those alleged under the

VEOA. Resp’t’s App’x 29–38. The type of VEOA claim

alleged by Mr. Jones does not fall “within the reach of

USERRA” because he does not allege that “the denial of

5 “Congress passed the VEOA to ensure that veter-

ans receive due consideration when they apply for vacant

positions available through the merit promotion process.”

Vassallo v. Dep’t of Def., 797 F.3d 1327, 1329 (Fed. Cir.

2015) (citation omitted).

12 JONES v. HHS

[the] veterans’ preference” reflects “evidence of anti-

veteran animus.” Burroughs v. Dep’t of the Army, 254

F. App’x 814, 817 (Fed. Cir. 2007) (unpublished); see

Pet’r’s Br. 6–7.

As for his last general argument, Mr. Jones contends

that the AJ erred by not removing agency counsel during

the hearing below. Pet’r’s Br. 14–16. According to

Mr. Jones, agency counsel “threaten[ed] [him] with eco-

nomic, and by extension[,] physical injury” throughout the

hearing. Id. at 15. Even if Mr. Jones’s claim had merit, it

would not impact our decision as to whether HHS violated

USERRA when it did not hire Mr. Jones because the non-

selection occurred well before the hearing.

Turning to the Sheehan factors, Mr. Jones alleges

that the AJ erred in applying the first factor. Id. at 11.

In particular, Mr. Jones avers that the AJ “totally omits

all the evidence and testimony that demonstrat-

ed . . . prejudice against veterans from [the Vietnam]

[W]ar is extant today.” Id. To the contrary, the AJ “fully

credit[ed]” this evidence, Resp’t’s App’x 29, but found that

other record evidence weighed against finding a nexus

between Mr. Jones’s service and HHS’s decision not to

hire him, id. at 30–31. Under the substantial evidence

standard of review, we “do[] not reweigh evidence on

appeal.” In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir.

2011).

Mr. Jones next contends that, as to the second

Sheehan factor, the AJ overlooked evidence in support of

his claim. For example, Mr. Jones alleges that statistical

evidence demonstrates that HHS hires few veterans.

Pet’r’s Br. 4. However, the AJ found that other evidence

outweighed those statistics. Resp’t’s App’x 36. We may

not reweigh that evidence. See NTP, 654 F.3d at 1292.

Mr. Jones also alleges that the AJ improperly disregarded

the fact that “he has been found ‘Best Qualified’ for at

least 175 positions.” Pet’r’s Br. 12. The AJ found Mr.

JONES v. HHS 13

Jones’s assertion to be “of little evidentiary value” because

it is based on Mr. Jones’s “self-evaluation” and, in any

event, HHS identified other evidence in support of its

decision to not select Mr. Jones when he was found to be

qualified. Resp’t’s App’x 36. We do not disturb the weight

that the AJ afforded to the competing record evidence.

See NTP, 654 F.3d at 1292.

Finally, as to the third Sheehan factor, Mr. Jones

avers that an email sent by an HHS employee reveals a

discriminatory animus towards veterans and that testi-

mony from other HHS employees corroborates his claim.

Pet’r’s Br. 5–6. The AJ, however, found that Mr. Jones

failed to link this email and the related testimony to the

hiring decisions in dispute. Resp’t’s App’x 37. Although

Mr. Jones cites the same evidence and raises the same

argument that the AJ rejected, he has not demonstrated

that the AJ erred in reaching that conclusion, nor does he

identify other record evidence to support his claim.

Therefore, we reject it. See Poett v. Merit Sys. Prot. Bd.,

360 F.3d 1377, 1381 (Fed. Cir. 2004) (“[U]nsubstantiated”

assertions do not equate to evidence.).

CONCLUSION

We have considered Mr. Jones’s remaining arguments

and find them unpersuasive. Accordingly, the Final

Decision of the Merit Systems Protection Board is

AFFIRMED

COSTS

Each party shall bear its own costs.